SRLP’s remarks on PREA at the Board of Correction’s monthly meeting

On May 12th, advocates from SRLP attended the monthly meeting of the Board of Correction – the body charged with monitoring all city correctional facilities – and spoke in favor of the Board adopting Rules enforcing compliance with the Prison Rape Elimination Act for the city jails.

SRLP went further than the PREA standards and offered suggestions rooted in not making any changes without the voices of TGNCI formerly and currently incarcerated people at the table. Below are the prepared remarks. SRLP will also be submitting comments to the Board of Correction.

SRLP’s comments to the Board of Correction:

Good morning, and thank you for taking time to listen to my comments. My name is Mik Kinkead and I am a staff attorney and the Director of the Prisoner Justice Project at the Sylvia Rivera Law Project (SRLP). SRLP strongly recommends the implementation of the petition by both the Office of the Public Advocate and Legal Aid Society’s Prisoner Rights Project.

There are so many people here – formerly incarcerated, loved ones of incarcerated people, attorneys and advocates – who could and have spoken about why this petition is vital and long overdue. SRLP is an organization based in providing leadership and legal services to transgender, gender non-conforming, and intersex New Yorkers who are of color or low-income. Because of this, I will focus my remarks on the recommendations that specifically mention transgender, gender non-conforming, and intersex peoples (TGNCI) although the petition and additional recommendations by the LAS PRP will affect all lives and TGNCI people are affected by all of these changes whether or not we are specifically named. Moreover, SRLP will be submitting more detailed comments in response to the Public Advocate’s petition before the end of the week.

As some brief background, SRLP provides legal services to 300-400 New Yorkers each year, we estimate that about 66% of them are either currently in prison or jail or are on probation or parole. As the population we serve is roughly 95% people of color we know that the intersections of race and gender identity make our communities over-policed and we are therefore overrepresented in jails and prisons. We have a knowledgeable and strong basis for our comments.

That someone is awaiting trial or has been convicted of criminalized behavior does not take away the inherent right to gender self-determination nor the corresponding right to be free from sexual violence including harassment and invasive searches. Cameras and stringent policies may be a part of the solution but we need to be aware that the DOC has had a policy of zero sexual violence for many years without meaningful results. Too often it is assumed that the conditions of incarceration are the punishment for criminalized behavior. This is not and has never been the case. Ending sexual violence in NYC’s jails must begin with the notion that people in detention or incarceration are human beings who have knowledge and awareness of their own bodies and what has happened to them.

For TGNCI people who are in the custody of the DOC it is vital that their opinion be the main determination point as to where they are housed, who searches them, what they are called, and other life-altering determinations. No one is better able to determine safety than the individual.

At this point, we have heard some positive feedback about the creation of the Transgender Housing Unit (or THU) from women who are currently housed there. The main point I am taking away at this time is that it is entirely possible to trust that TGNCI people know what our own safety needs are. We have also learnt that it is possible to hire or train DOC employees to use correct names and pronouns, to perform pat frisks appropriately, and to generally behave at the minimum of what we require for employers, public servants, and for a civil society.

For the many TGNCI people who are not in the THU – whether because they have deemed themselves safer elsewhere or because it was not made available to them – they report that the sexual violence including sexual harassment and improper searches continues on the same horrific levels it always has. It becomes impossible to report these concerns to any staff or volunteers within the DOC when, as the sexual abuse is seen as part of the punishment or as the Legal Aid Society mentioned, when individuals are made to feel as if simply for having their own identities they “brought on” the abuse.

To this end, we also want to oppose any lessening of or further barrier-making around the visitation process. Visits are vital spaces to show that people who are incarcerated or detained have not been forgotten. A visit sends a reminder that this person is cared for, is loved, and is a whole unique being including but also apart from their current incarceration. It is a chance for people to reconnect, share, and be inspired by their loved ones. It also can serve as one of the few places an individual can share experiences of sexual violence with someone who is whole-heartedly believing them and respectful towards them.

There are populations for whom increased vigilance and awareness of vulnerability may begin to create de-facto solitary confinement (such as transgender women between 16-17). In these instances we stress that no one should be placed in solitary confinement even if it is ostensibly for “their own protection.” There is overwhelming evidence from multiple sources that solitary confinement is torturous regardless of the alleged reason for it. Creating a situation where a person is effectively preemptively punished for their own identity by being placed in solitary is not a proper response to sexual violence. In these instances, these individuals should not be held by the DOC.

SRLP also strongly endorses the suggestion to provide for outside advocates to offer trained, meaningful, and diverse counseling after an incidence of sexual violence is reported. We know from our clients and members that people identified as LGBTQI disproportionately experience sexual violence. Outside advocates will be uniquely positioned to bring in cultural understanding of the realities of TGNCI peoples’ lives and what surviving after sexual violence means for our populations.

Finally, I want to make SRLP and the knowledge base of our members available as resources to shape these decisions as they progress. No one knows better than those who have actually experienced sexual violence how to implement life-altering change.

I thank you for your time and look forward to continuing this process together.